[T]he Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases.

MORE: From SCOTUSblog:

The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race.

Justice Kennedy recited from his separate opinion, in which he declined to join the Roberts opinion as it discussed the lack of a compelling interest in race-based preferences. The Chief Justice's opinion notes that Seattle was never officially segregated by race, and that Louisville is no longer under a court order to desegregate its once-segregated system.

AND: Here's the opinion. I won't be able to read this for a few hours, so please check out the other blogs or discuss the case in the comments. I think it is very important.

I wonder what percentage of Americans would want to segregate schools by race? The percentage has obviously changed since 1964, and 1974 for that matter. Are racial quotas a "solution" for a problem that no longer exists? Who are these people that want to racially segregate schools, and how do they get on the school boards?

Trey - I think the people pushing the quotas aren't so much worried about desegregation as they are about compulsory diversity. They apparently believe that a school which has a predominantly white student body because its catchment area is predominantly white - no matter that said demographic is purely a result of market forces - is not especially better than a school that is actually segregated.

"To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred."

After reading the opinion, I found Justice Kennedy's opinion to be particularly curious.

The liberal block did what we expected from them and the conservative block did what we expected, but I didnt expect Kennedy to reject the majority opinion's harsh language. He wrote the Carhart decision that is still being ridiculed for its pejorative terminology but in this case, Kennedy was concerned about the majority being mean.

I wonder if they realize that neighborhood diversity is the problem, not school diversity. And income diversity is a problem too, along with intact family disparity.

So what? Is the government now going to mandate where we can and cannot live according to our ethnic make up? "So sorry Mr & Mrs Chang, we already have our quota of Chinese in this neighborhood, you will have live over here where we are short on Chinese."

Income disparity? Well we know how to solve that. Make everyone the same level of income. "You worked too much this year and made too much money so we are going to take 38% of your income and give it to JoeBob over here who sat around and drank beer all summer." Oh....wait we already have that system!! It's called the IRS and Welfare/entitlements.

Intact family disparity. Hmmm not sure how the government is going to fix that problem since they are the ones who created it through the welfare state. Who needs a husband when you get paid by not being married and having illegitimate children on welfare? "There are too many people in this neighborhood who are not married or getting divorced, therefore you WILL stay married or be fined unless you move to this other neighborhood which has a high quota of stable families."

How are any of these disparities any business of the government? People live where they can afford to live and live near people that are similar to themselves. That is human nature.

It is an important case. I also want to read through the decision, but there's indeed some irony in the majority's use of Brown. I think the Court voted correctly, but the 5-4 (well-known) Court split is a far cry from the efforts of Earl Warren to get a unanimous ruling in 1954. Kennedy's concurrence was also interesting -- a remnant of the sentiments in the Michigan University affirmative action cases, no?

This was an interesting case, but it's just one more in a long line proving that constitutional law in this area consists of little more than nose-counting.

There are really two issues that divided the Court. The first is whether racial balancing is a compelling gov't interest, and the second is which institution of gov't should decide these kinds of questions.

All of the justices (with the possible exception of Kennedy) agree that, in evaluating "racial balancing," the key issue is whether the motives ("benign" v. "malign") of the state actor make any difference. Four justices say no, because all racial classifications are subject to strict scrutiny; four say yes, because only classifications intended to exclude minorities are of constitutional concern; and Kennedy seems to fudge (it's hard to be sure but he seems to want to dissect the concept of "racial balancing" in a particular context, and avoid broad pronouncements). The Court has been going around and around on this issue for decades. Precedent really doesn't control here (Breyer's dissent makes that particularly clear); the fact that the Court has held recently that all racial classifications are subject to strict scrutiny, and that the benign/malign justification doesn't work, was beside the point. Both sides invoked history -- CJ Roberts by quoting O'Connor's recommendation that a little "humility" about gov't ability to distinguish "good" discrimination from "bad" discrimination is in order; and Stevens and Breyer by pointing out desegration cases have never been about whites demanding the opportunity to attend all-black institutions.

The second issue is whether courts or legislatures (or "local gov't") should decide. On this one, CJ Roberts says that one constitutional standard ("strict scrutiny") applies whenever any gov't actor discriminates between persons based on race, and thus courts must decide. Breyer says that it's a matter of benign/malign motives and impacts on minorities, and thus "deference" to legislatures and local gov't is appropriate. That's basically the opposite of where the two 4-justice factions tend to come out on this issue -- normally CJ Roberts is all for deferring to the political institutions in the culture war; and Breyer is all for imposing enlightened standards from on high.

Whether you agree with the plurality or the dissent (could anyone agree with Kennedy?), the real significance of this case is that it shows the poverty of "constitutional law" as a way to decide these issues. All of the opinions in this case are shot-through with assertions based on social values and predictions of social impacts of a ruling for one side or the other, or the adoption of one of the competing constitutional "standards." The divisions between the justices are rooted in different notions of "equality," and the harms/benefits that can result from racial line-drawing in this context. It seems clear, at least to me, that those factors, rather than constitutional text or any other objective criteria, determined the result. If I had been a member of the Court, I would have signed on to the Roberts opinion. But I can't see any reason why anyone else should think that I (or CJ Roberts or Breyer) are better placed to decide these issues, rooted as they are in values, than the next person.

Donald Douglas said...""[T]here's indeed some irony in the majority's use of Brown. I think the Court voted correctly, but the 5-4 (well-known) Court split is a far cry from the efforts of Earl Warren to get a unanimous ruling...."

What would you have had the Chief Justice do? Kennedy was going to write separately no matter what the opinion said. The liberal bloc wasn't going to sign onto an opinion that threw out the plans. So what should Roberts have done? How could this case have come out any way but 5-4, that was within Roberts' power to affect?

This great line from Justice Thomas is worth noting (nuking Breyer’s opinion): “Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.” (comparing Breyer’s positions with those of the segregationists in Plessy v. Ferguson and Brown, and citing Dred Scott to boot). Ouch.

If you ask me, the majority in this case would be well-served to reflect upon the adage: "the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread."

Why should they reflect on that. The law is the law and equal opportunity is what we should be trying for. Anytime you try to legislate equal outcome for equal opportunity, you end up with a mess that is not fair to anyone. That is what it seems to me the "progressives" miss out on. As soon as you legislate equal outcome, everybody can just stop working because it just won't make a difference.

I think in the end, that Thomas will carry the day. As usual, in discrimination cases, his pithy lines are the best sound bites.

The liberal minority seemed to be suggesting that it was ok in this case to not subject this government action to strict scrutiny because the motives were pure. Rather, Breyer seemed to be suggesting some sort of new quasi-rational basis test in such a situation.

And Thomas came back and slammed them for that. If the courts are not going to apply strict scrutiny to precisely the suspect class distinction for which the 14th Amdt. was passed, then is strict scrutiny dead overall? Or is it maintained in only politically correct areas, like sexual orientation? Luckily, we don't have to find out, at least for awhile.

One of the points that Justice Thomas kept pounding out is that there is a fundamental difference between remedying officially sanctioned discrimination, and racial balancing. The former can ultimately be officially declared to be remedied, but the later is a moving target.

In both these cases, the school districts were not addressing past discrimination, but rather were engaged in racial balancing. And, thus, allowing discrimination based solely on race in such a case would be open ended (and violative of the 14th Amdt.)

DBQ wrote: "How are any of these disparities any business of the government?"

Now that there is practically no institutionalized racism (outside of the government and schools of course)none.

"People live where they can afford to live and live near people that are similar to themselves. That is human nature."

I agree completely.

My point was that they were looking to solve a problem that no longer exists (institutionalized racial discrimination) by prescribing the very same thing (racial quotas, forced busing, racial priviledges) and citing the need by using "symptoms" that are better explained by preference, choice, and personal responsibility.

It is a shell game, and a sick one at that. Too many government welfare and social engineering programs end up perpetuating the very problems they say they are fighting. It shows either a failure to understand basic human nature and operant conditioning or that the people who promote it are morally bankrupt and just cynically seeking power and/or wealth.

That quote, which was in the Stevens dissent, seems inapt in the context of this case. Two things we know about the Seattle and Louisville situations: racial imbalance is not the product of governmental discrimination (there never was any in Seattle, and it was remedied in Louisville as of the dismissal of the desegregation order in 2000); and the programs are not preferences as such but racial distribution quotas.

In this context, the quote seems to suggest that the dissenters' opposition to a colorblind constitution is that "benign discrimination" is necessary to protect racial minorities (the "poor" in this instance) regardless of the presence or absence of past discrimination. Aside from being offensively paternalistic, this puts the lie to the "diversity" mantra that the liberal justices have been pushing since Bakke. It leads one to suspect that diversity is just a pretext - their real fear is that too high a proportion of racial minorities in a given school makes for a bad school.

If this marks the beginning of a new era of intellectual honesty in the defense of racial engineering, hooray for that. But all the social scientists who've been ginning up "scientific" support for the critical mass theory and the like are going to be out of work.

"How could this case have come out any way but 5-4, that was within Roberts' power to affect?"

Roberts could have lobbied harder for a consensus vote. Warren did. You think race issues are less contentious today than they were in the 1950s? This is a malleable liberal bloc, as well. Stevens doesn't always vote with the liberals, for example, in Texas v. Johnson. Nor has he always sided with the liberals on death penalty, freedom of speech, and states rights. My point was primarily an observation of changed times -- no need to get all lathered!

Donald, with all due respect, I think it's extraordinarily unlikely - almost beyond the realms of conception - that there is any opinion that could be written that would have produced a result other than 5-4.

Moreover, why should Roberts get the blame for bitter 5-4 vote? One could imagine a middle path, with everyone getting (in some cases reluctantly) behind the Kennedy opinion. The four conservatives didn't do that -- but then, neither did the four liberals. And why is that? Because the four liberals on the court weren't going to join any opinion which would have struck down these programs, and the four conservatives believe in a color-blind constitution.

This case reveals a profound disagreement over the meaning of Brown v. Board. To the Chief Justice, Justices Scalia, Thomas and Alito, Brown accepted the contention of the plaintiffs in that case that “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” To the plurality, as Justice Breyer blithely says in dissent (apparently obliviously to the import of his words) "[i]n Brown, this Court held that the government’s segregation of school children by race violates the Constitution’s promise of equal protection." The plurality advance the novel and plainly racist principle that one's race ought not determine one's treatment by the government.

Justice Breyer and the dissenters, on the other hand, claim that to them, Brown demanded "integrated primary and secondary education." But the context of the declaration - this case- makes clear that their understanding of Brown is that it requires not the absence of segregation, but the presence of racial balance. The question is whether Brown was about segregation and equality before the law, as the conservative bloc believes, or the incompatible goal of government-mandated proportionality and diversity.

Dewayne - Someones skin color is the *least* important fact about them: their interests, character, strengths and weaknesses, hobbies, etc, are all far more important in having an *actual* diverse school.

Otherwise you would see whites, blacks, and hispanics interested in car motors, stamp collecting, doing the minimum to gratuate from HS, and baseball ignore their neighborhood friends/gangs. And nationwide, hanging together in a happy diverse multiculti circle of friends formed by mutual interests, hobbies, character.

Doesn't happen.

Not in schools. Not in prisons. Not in even Democratic all-white grassroots/internet social get togethers.

"My gosh, here we all are with our glasses of white wine in a half a million home and pledging 500 a piece so John Edwards can fight for gay marriage, saving Darfur, and ending poverty and we don't have a single black or chollo here! Lets send a few buses to bring our comrades down in the barrio and from the all-black part of town to help diversify our get-together!""Oh, the house owner says maybe next time...."

"Otherwise you would see whites, blacks, and hispanics interested in car motors, stamp collecting, doing the minimum to gratuate from HS, and baseball ignore their neighborhood friends/gangs. And nationwide, hanging together in a happy diverse multiculti circle of friends formed by mutual interests, hobbies, character.

Doesn't happen. "

I'll have to mention this to my childhood friends, including Roberto (hispanic), Greg (black), and another Greg (Chinese). They'll be surprised to learn that they did not have interest in baseball nor in doing the minimum to graduate high school (or college, for that matter).

We hung together, sharing mutual interests in girls, sports, an occasional toke (well, for a few of us, not all), drink (well, for all but one of the Gregs-- which is for you to guess), Monty Python, rock music, and other things.

Is there anyone here who can refute the historical description of the relevant precedent in Justice Stevens' dissent? (And, don't bring up Justice Thomas's concurrence, because that was aimed at Justice Breyer and ignored Justice Stevens.) Anyone care to explain why Justice Rehnquist would -- based on, say, the Civil Rights Act of 1964 -- overturn a 1967 decision he affirmed in 1978 on the basis of the 14th Amendment? Is there any way -- based on the specifically applicable precedent that Justice Stevens cites in his dissent -- that CJ Roberts' plurality is not raw judicial activism? I like Roberts, but this looks pretty bad.

Mort - I see nothing convincing (barely relevant, in fact) in the slightest in the Stevens concurrence. The Chief and Justice Thomas give it just as much attention as it deserves. Like Justice Breyer's opinion, Justice Stevens seems not to graspthe difference between remedying actual de jure segregation (which was at issue in the cases Stevens cites) and pursuing de jure racial diversity in districts that were either never segregated or that have been determined to have sucessfully desegregated.

The Chief Justice utterly eviscerates the dissenters' reasoning (such as it is) in his opinion, and I see no need to elaborate further, other than to point out that today, I learned something new. It would seem that in the liberal dictionary, "segregated" does not refer to the results of deliberate state policy, as one might think reading Brown and the cases that followed it; no: it is an antonym for "diverse."

I am mystified how anyone can consider today's decision anything but correct. Anything else would be a profound retreat from Brown's promise of elimiating race as the deciding factor in one's education.

DTL - if it's your contention that it's "judicial activism" to strike down local laws that are inconsistent with the constitution, that's either profoundly intellectually dishonest, or perhaps simply completley ignorant. One or the other.

Of course, you are in good company - the New York Times makes a similar assertion today, combining it with the even more risible assertion that this decision violates federalism principles. It of course doesn't, and even if it did, the idea that the New York Times thinks that it can wave the federalism flag is laughable.

It is not judicial activism to strike down a law when it is actually inconsistent with the Constitution; indeed, it can in fact be judicial activism to uphold a law when it is inconsistent with the Constitution. The term hinges on the correctness of the decision, not some free-floating hostility to judicial review.

See what you did? You pretended Breyer's dissent is the same as Stevens's (it isn't), and then quoted Thomas's concurrence to attack Breyer's dissent. I'm not talking about that. I think some of Thomas's points are fine, while others are strained, and I think some of Breyer's points are fine, and others are strained.

But I'm talking about Stevens' attack on Roberts's plurality opinion, which is wholly irrelevant to the Breyer-Thomas battle. Nor, as you say, does Roberts ignore Stevens. He responds by quoting Stevens out of context. What he fails to do is explain why he ignored to mention directly applicable precedent that his plurality opinion seeks to overrule. And why he misstated, as a historical matter, what the law actually has been. Take your pick: Roberts is sloppy (highly dubious) or a raw judicial activist who happens to be a conservative. I can see why you don't want to deal with that argument, and much prefer talking about Thomas's concurrence, which may be unconvincing in places, but is never unprincipled.

Mort, it's not a question of not "wanting to deal" with an argument, it's a question of "where's thee argument?" What "directly applicable precedent" does Stevens cite that you find so persuasive? I've read that dissent several times and it seems totally irrelevant to me. None of the cases it cites bears the sort of weight Stevens' rhetoric would place on them, but if you have a particular one in mind I'll look at it again.

Like Justice Breyer's opinion, Justice Stevens seems not to graspthe difference between remedying actual de jure segregation (which was at issue in the cases Stevens cites) and pursuing de jure racial diversity in districts that were either never segregated or that have been determined to have sucessfully desegregated.

The words "de jure segregation" appear on Thomas's concurrence. So that counts as a quotation. But you're right that in general you are paraphrasing.

Mort, surely you can't mean School Comm. of Boston v. Board of Education, 389 U.S. 572 (1968). Surely you don't think that an opinion that I can quote here in its entirety - "[t]he motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question" - or, yet more riotously, an in chambers opinion by Justice Rehnquist denying a stay constitute a "directly applicable precedent." Why don't you - and Justice Stevens - just go the whole hog and start citing denials of cert as "express[ing] [the court's] appraisal" of whether the court below got it right?

And for that matter, both of those cases relate (as does Swann, by far the closest to a genuine precedent that Stevens cites) to desegregation - which as the Chief is at pains to point out has nothing to do with the school districts in this case, one of which was never segregated and the other of which was certified as desegregated almost a decade ago. Remedial measures to achieve desegregation are completely different with measures whose only goal is to ensure that each school has a certain quota of one race and a certain quote of another.

"Segregated," neither within its ordinary meaning nor as that phrase has been used as a term of art in our history, is not an antonym for "diverse." To characterize what was wrong with the schools of Topeka, KS, as being nothing more insidious than that black and white children didn't go to the same schools profoundly misunderstands and understates the scope of the evil of segregation - which was, of course, that they were prohibited from doing so. If a school district has two schools, A and B, and through the free interaction of personal choice, all the latinos of the district live clustered together in the catchment area of school B, they should go to school B, but for the normal exceptions available to any other student in that catchment area who wants to go to school A. To quote again from Our Hero's Adarand concurrence, "[i]ndividuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual...."

It’s been widely commented upon that the concurrence of Kennedy is of crucial importance in understanding what the affirmative action or diversity standards will be moving forward, certainly for pre college public schools, but probably also much more widely than that.

However, Kennedy’s language in his Grutter dissent (the case which narrowly found the Univ. of Michigan’s affirmative action program permissible) is also of crucial importance. In fact under those facts Kennedy found that Michigan Law’s program weighted race too heavily and that it was in actual fact a rough quota system masking under different name and pretext.

He wrote in his Grutter dissent:

To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny. ***

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review.

Following Grutter the conventional wisdom arose that as long as universities mouthed slogans such as “one factor among many” and perhaps had complex individual weighing admissions programs, then admissions goals for certain minorities could in fact work as rough minimum quotas. Such a approach is very unlikely to get Kennedy’s support in any future Supreme Court case considering permissible diversity programs including by universities.